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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA : : Civil No. 97-2972 : v. : : Criminal No. 88-00003-09 : JOSEPH PUNGITORE : : OPINION AND ORDER Van Antwerpen, J. August 5, 1998 I. INTRODUCTION Petitioner, following in the footsteps of his co- defendants Nicodemo Scarfo, Frank Narducci, Philip Narducci, Frances Iannarella, Jr., Ralph Staino, Salvatore Merlino and Anthony Pungitore, Jr., has filed a § 2255 Motion asking us to overturn his conviction and sentence for his crimes committed while a soldier in the Philadelphia mafia. Mr. Pungitore’s motion first asks the court to recuse itself. Next, Petitioner argues that his conviction and sentence should be overturned under the Fifth Amendment since: (1) the government failed to turn over Brady material, (2) the court erred in instructing the jury on the issue of reasonable doubt, and (3) the court’s consecutive sentences for RICO and RICO Conspiracy violate the Constitution’s bar against double jeopardy. Finally, Petitioner asserts that his conviction and sentence should be overturned under the Sixth Amendment because: (1) Petitioner was constructively denied counsel due to threats leveled against both him and his attorney by the Petitioner’s co- defendants; (2) Petitioner was denied effective assistance of counsel at trial; and (3) Petitioner was denied effective assistance of counsel in plea bargaining. Though some of the issues raised by Petitioner are more complicated than those raised by his fellow co-defendants, the end result is the same. Following a May 13, 1998 hearing in open court and for the reasons that follow, Petitioner’s motion will be denied. II. FACTS AND PROCEDURAL HISTORY In January of 1988, Joseph Pungitore was indicted for RICO, RICO Conspiracy, Illegal Gambling Business, and Conspiracy to Distribute Methamphetamine. He was charged in this indictment with 18 other fully initiated members of the Philadelphia La Cosa Nostra family. The indictment was superseded in June, 1988. Petitioner was represented by attorney Stephen Robert LaCheen during the pretrial proceedings and at trial. On June 30, 1988 Joseph Pungitore, through Mr. LaCheen, filed a number of motions, including a motion to sever. His motion cited the following typical reasons for severance: (a) that various defendants might present materially different or mutually exclusive defenses, (b) that any defendant who chose to testify 2 in a joint trial would become an unwitting government witness against his co-defendants, (c) that if any of his co-defendants chose to testify on their own behalf, he (Mr. Pungitore) might be forced to testify on his own behalf to refute accusations from the co-defendant, and (d) that he would be prevented from calling co-defendants as witnesses because of their Fifth Amendment rights. While other defendants joined in various motions of their co-defendants, no defendant joined Joseph Pungitore's severance motion. Consequently, on July 13, 1988, the court issued an order to the effect that each defendant would be deemed to have joined in every applicable motion filed by a co-defendant with the exception of Joseph Pungitore's June 30, 1988 motion to sever. The case was called for trial on September 8, 1988. At that time a number of pre-trial issues remained to be decided before the commencement of jury selection. One of these was the severance motion, which was argued on September 9, 1988. Mr. LaCheen declined to make any evidentiary presentation in support of the motion and argued only that severance into three or four separate trials might make it easier for the court to handle the case. The court pressed Mr. LaCheen by asking him: "you're not telling me, that if you were severed that there's somebody that would come and testify on your behalf or something?" Mr. LaCheen 3 stated: "I'm not making a specific -- that's correct." The motion was denied. Tr. 9/9/88 at 20-21. The case proceeded to trial. Apparently content to be tried with his co-defendants, Mr. Pungitore never again raised the severance issue, and the case went to the jury. On November 19, 1988, the jury returned its verdict, finding Joseph Pungitore guilty of all charges against him: RICO, RICO Conspiracy, Conspiracy to Distribute Methamphetamine, and Operating an Illegal Sports Bookmaking Business. More specifically, with respect to RICO, the jury found the Petitioner guilty of all nine racketeering acts expressly charged against him in the indictment:1 (1) Racketeering Act #5 -- both conspiracy to murder and the murder of Frank Narducci in which the evidence showed Mr. Pungitore to be one of the two shooters who pumped approximately ten bullets into Narducci virtually on the doorstep of his house as he was returning home from his federal court trial; (2) Racketeering Act #6 -- both conspiracy to murder and the attempted murder of Harry Riccobene in which the evidence showed that Pungitore was a Scarfo loyalist in the "Riccobene War", and in that capacity, he was part of a hit team that stalked Riccobene and 1. Some racketeering acts had more than one component. A finding that either component was proved was sufficient for the jury to find that the government had proved the racketeering act. For example, with respect to racketeering act #11, the jury could have found that the government proved this racketeering act if it found either that Mr. Pungitore was guilty of conspiracy to murder Robert Riccobene or of the actual murder of Riccobene. In fact the jury found Mr. Pungitore guilty of both components of this racketeering act, as it found him guilty of all components in every racketeering act that contained multiple components. 4 plotted his murder; evidence showed that Petitioner and Salvatore Grande caught Riccobene in a phone booth and Grande shot at him and then fled in a car driven by Mr. Pungitore; (3) Racketeering Act #9 -- both conspiracy to murder and the attempted murder of Frank Martines, in which the evidence showed that Mr. Pungitore was part of a Scarfo loyalist hit team in the "Riccobene War", and in that capacity acted as a blocker when Martines was ambushed and shot in the head; (4) Racketeering Act #11 -- both conspiracy to murder and the murder of Robert Riccobene, in which the evidence showed that Mr. Pungitore was part of a Scarfo loyalist hit team in the "Riccobene War", and in that capacity drove the get away car after Francis Iannarella, Jr. shot and killed Riccobene; (5) Racketeering Act #12 -- both conspiracy to murder and the murder of Salvatore Testa, in which the evidence showed that Mr. Pungitore, on orders from Philadelphia La Cosa Nostra mob boss Nicodemo Scarfo, lured his best friend, Testa, into a fatal ambush; (6) Racketeering Act #18 -- operation of an illegal lottery business, in which Mr. Pungitore was the operational chief; (7) Racketeering Act #19 -- operation of an illegal sports bookmaking business, in which Mr. Pungitore was the operational chief and owned one-third of the business, in partnership with Scarfo and other high ranking mobsters; (8) Racketeering Act #20 -- conspiracy to distribute methamphetamine, where the evidence showed Mr. Pungitore, while assiduously avoiding personal contact with the actual drugs, financed drug trafficking, received commissions for sending drug buyers to drug suppliers and entered into a business partnership with a drug trafficker; (9) Racketeering Act #35 -- extortion of Michael Madgin, where the evidence showed that Mr. Pungitore shook down a known drug trafficker, loanshark and bookmaker on behalf of the Philadelphia mob and kept a split of the extortion proceeds for himself. 5 Conviction of any two of these racketeering acts would have constituted a pattern of racketeering activity sufficient to justify Petitioner's RICO conviction. As the record reflects, Mr. Pungitore was convicted of all nine, and all of the component parts of those racketeering acts that had constituent parts. Additionally, Mr. Pungitore was found guilty of RICO by virtue of his participation in two different collection of unlawful debt schemes: (1) Collection of Unlawful Debt Scheme #3 -- the collection of debts accrued through the operation of an unlawful sports bookmaking business; and (2) Collection of Unlawful Debt Scheme #4 -- the collection of debt accrued through a usurious loan business. Each of these schemes, by itself, and independent of the racketeering acts, was sufficient to justify Mr. Pungitore's RICO conviction. Extensive testimony concerning the RICO enterprise [the Philadelphia La Cosa Nostra family] was presented at trial. The evidence established that La Cosa Nostra was a criminal organization structured in families throughout the United States. Each family had its own boss, and La Cosa Nostra, itself, was governed by an eleven member commission that consisted of the bosses of the five New York families and the bosses of six other families from elsewhere in the United States. The Philadelphia La Cosa Nostra family consisted of about sixty members and operated in Pennsylvania and New Jersey; its boss since the early 6 1980's was Nicodemo Scarfo. A La Cosa Nostra family was headed by a boss, who had the sole and absolute authority to "make", i.e., initiate members, promote and demote officers and order killings. All members owe a duty of absolute obedience to the boss. Other officers included the underboss, a consigliere (counselor), and capos. Fully initiated members held the rank of soldier. In order to be "made", one had to be a male of Italian descent who had participated in some way in a La Cosa Nostra sanctioned murder. La Cosa Nostra employed a ritual initiation ceremony. A proposed member would be brought to a meeting of the active membership over which the boss presided. He would be called into a room and asked if he wanted to join the group.

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